There are a number of other factors such as the social sanctions, habit and convenience which help in the obedience of law. In his definition Command, duty and sanction are the three elements of law. The fundamental difference between the definitions of the two jurists is that whereas in the definition of Austin, the central point of law is sovereign, in the definition of Salmond, the central point is Court. In fact, both the definitions are not perfect and present two aspects of law.
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This is no mere theoretical matter but one of practical legal significance. Questions like is international law really law, and whether an unjust law is really a law can only be solved by reference to the definition of law.
The fact is that law itself is not a legal concept any more than geometry is a geometrical concept. The concept of law is not one that figures in legal arguments or gives rise to questions of practical significance: no legal judgment ever hinges on the definition of Law. Conclusions of Law do not depend on the definition of Law. But if Law is not a legal concept, it nevertheless is the basic concept of jurisprudence, and its analysis is relevant to that of all other legal concepts.
But a desire to define Law also springs from a desire for generalisation. The problems with defining Law is because this notion itself is surrounded with philosophical perplexities.
In the first place, the traditional method of defining Law is inadequate for the purpose. The traditional method is to define something by specifying the class to which it belongs and describing the features which distinguish it from other members of this class. This cannot apply to Law. We could define Law as a species of rule and set out what distinguishes legal rules from non-legal rules.
However, the problem lies in explaining what exactly rules are. The fact that the concept of Law has no practical application precludes the need for putting forward a definition which lays down clear boundaries between what shall and what shall not count as Law.
The question remains that what is Law in the ordinary sense of the rule. A short simple definition would not provide an adequate analysis of a rule, an examination of the difference between legally obligatory conduct and conduct coerced by force, or an investigation into Law and morality.
Therefore we need an analysis into to unravel the confusions surrounding the concept of Law, to highlight the salient features of a legal system and to furnish us with an insight into the nature and operation of Law. Three theories- a Law as the dictate of reason - Natural Law: The central notion is that there exist objective moral principles which depend on the essential nature of the Universe and which can be discovered by natural reason, and ordinary human Law is Law only if it conforms to these principles.
These principles of justice and morality constitute the natural Law, which is valid of necessity, because the rules for human conduct are logically connected with truths concerning human nature.
Thus we can ascertain the principles of natural Law through pure reason and common sense. Such Law differs from human Law which can be found only through reference to legal sources. And finally, since Law can be valid only if its obligatory, and Law contrary of the principles of natural Law cannot be obligatory, a human Law at variance with natural Law is not really Law at all, but merely an abuse or violation of Law.
Attractions: 1 Ordinary Law often falls short of the ideal. Men have often felt the need to appeal to a higher standard.
It was held by many that rules of Law appeared not to depend on natural necessity, but on pure historical accident; and being arbitrary and contingent rather than necessary and obligatory, they seemed to have no special claim to obedience. In reply Aristotle pointed out the heralds were inviolable in all the Greek States, as though it were natural for men to have such a Law. Paul had tought that conscience unaided could arrive at moral truths.
On this foundation the medieval theologians were able to synthesise Christian doctrine with non-Christian. However, the inference of a factual statement is not apparently one of strict logical necessity. See example. The way in which natural Law tries to bridge this gap is to propose that if it is natural Law for man to act in a certain way — and this is something which observation can reveal — then he ought to act in this way.
People have attacked this assumption, saying it is confusing moral Laws with scientific Laws. In reply, natural lawyers say that science describes not how things behave but how they are ordained to behave.
And all things except for man are under obligation to obey. However, going by this it is first essential to prove that man has been given a purpose by his maker. To believe this, it is first necessary to prove the existence of God, something impossible to do through pure reason alone, and this is contradictory to the principles of natural Law which speak of moral truths that can be arrived through pure reason alone.
An alternative theory is to claim that propositions of natural Law are self-evident. However, this is backtracking from the more attractive claim that such propositions can be proved. To answer this, the proposition of natural law with varying content has been put forward. The basic principles remain the same, but their detailed application would depend on the special circumstances of each society. The main difficulty here is that this could simply be a change in moral attitude.
Now to describe moral propositions as natural Law is attractive, but it should not be done as there are vital distinctions between legal and moral rules. Advantages of natural Law: - offers flexibility - weakens the authority of unjust and immoral Laws Disadvantages of natural Law: - detracts from certainty and predictability of Law.
A great virtue of this theory is that is stresses the fact that law is only Law if it is effective. Attacks upon this theory: 1 Objections of natural Law. There are may laws which neither command nor forbid, but rather empower people eg right to vote etc. It might be said that a rule conferring a right upon one is really an indirect command upon other, but this merely distorts its nature. This is too simplistic in the modern legal system.
Laws differ in that they can and continue to exist long after the extinction of the actual law- giver. The hall-mark of a sovereign is that his enactments qualify as Law and that no other enactments overrule them. No paradox arises if a written constitution places limitations on the legislature. Related Papers.
Ownership in jurisprudence
This is no mere theoretical matter but one of practical legal significance. Questions like is international law really law, and whether an unjust law is really a law can only be solved by reference to the definition of law. The fact is that law itself is not a legal concept any more than geometry is a geometrical concept. The concept of law is not one that figures in legal arguments or gives rise to questions of practical significance: no legal judgment ever hinges on the definition of Law. Conclusions of Law do not depend on the definition of Law. But if Law is not a legal concept, it nevertheless is the basic concept of jurisprudence, and its analysis is relevant to that of all other legal concepts.
Biography[ edit ] Salmond was born in North Shields , Northumberland , England, the eldest son of William Salmond died , a Presbyterian minister and professor. He then obtained a Gilchrist scholarship to study at University College, London , where he graduated in law and became a fellow. Returning to New Zealand in , he was admitted as a barrister and solicitor of the Supreme Court, and practised in Temuka in South Canterbury. In he was appointed professor of law at the University of Adelaide , South Australia, and in he returned to New Zealand to take up the founding chair in law at Victoria University College , Wellington.